Overview of Process to Assemble H1B Petition
To Authorize a Foreign National to Work at Baylor University
An H1 Petition is only part of the overall process of legally obtaining entrance to, or
maintaining presence in, the United States. The process has been created by federal law
and is implemented by lengthy regulations issued by the Executive Branch of the United
States that must be followed by Baylor, by the foreign national, and even by legislators
who believe they can help obtain favorable treatment. It is an understatement to say the
process is complicated since in its totality it can involve the Texas Workforce
Commission, the U.S. Department of Labor, the Bureau of Citizenship and Immigration
Services (BCIS) and the U.S. Department of State (DOS), through its embassies and
consulates (that have imposed some differing and inconsistent procedures for obtaining
visas, particularly after 9/11). Immigration law has some complicated social policies
underpinning the rules. In the context of employment, the key concern is that American
jobs should generally be preserved for American workers. Consequently, Baylor is not
permitted to hire foreign national workers just because Baylor wants to do so—Baylor
must find the rule of law that permits employment under the circumstances of the specific
situation.
Here are some other pieces of the overall context of the process of obtaining H1 status for
a foreign national:
Basic categories
1.
Status of foreign nationals who wish to be in the US falls into one of two
categories: immigrant status and non-immigrant status.
Immigrants-Intent to Reside Permanently
2.
Immigrant status is sometimes called a “green card” or “permanent residence,”
and is a permanent status if ultimately obtained and maintained. This is a very
long, expensive process and is normally undertaken only after entry under an
H1 in the case of faculty members or postdoctoral researchers. Permanent
residence will ultimately have to be obtained in order for a foreign national
faculty member to be tenured, since H1 status is normally only a maximum of
six years. Baylor has a policy to reimburse faculty members some costs of
pursuing permanent residence through an attorney of his or her choice. If
permanent residence is sought, it should be started as soon as possible
after the initial hiring decision to take advantage of some special
processing rules. Otherwise, it may not be possible to obtain permanent
residence with the special processing.
Additionally, one of the usual key components in obtaining a green card is
to prove that the U.S. labor market has been adequately tested to find a
qualified U.S. worker. This means, in part, that the advertisement for the
position must be placed in a hard-copy publication of general circulation.
Neither on-line advertisements nor advertisements in a professional
journal suffice. As a matter of practice, the advertisement should also be
placed in the hard copy of the Chronicle of Higher Education.
Non-Immigrants-Intent to Reside Temporarily
3.
All other categories are considered non-immigrant status because entry is only
for a specific purpose or time or both. H1 is a non-immigrant status that can be
obtained for two three-year periods, at most. The basic application fee is now
$320.00. H1 status is considered a “specialty occupation” for which the nonimmigrant has at least a bachelor’s degree in the discipline for which he or she
is being hired (that is, the person needs the degree to perform the job.) For
example, BCIS would not approve an H1 for a person with a degree in Physics
to teach English.
4.
Some other non-immigrant categories include F (students), J (exchange
visitors), and TN (Canadians who enter under NAFTA). It is possible to have a
faculty person begin work at Baylor in F, J or TN status and then file a change
of status to H.
5.
However, if a person is in country in valid F or J status or some other
status, and if Baylor wants to pursue a change of status to H1, the person
should not leave the US during the time the H1 petition is pending. BCIS
may consider departure from the US as an abandonment of the request to
change status and will not process the case.
6.
Another potential problem highlights the pitfalls of the immigration
process based on enforced, but unwritten rules. If a nonimmigrant enters
the country for example in TN status, and files for a change of status to H1
within 60 days of entry in TN status, BCIS and DOS apply a rule about
“preconceived intent” that results in rejection of the H1 status. The
rationale is that the person should have entered solely under the H1 status
because that was obviously the intent at the time of entry. As a result, the
nonimmigrant may have to return to his or her home country, and reenter
under H1 status.
7.
Normal processing time for an H1 with BCIS only (not counting the work that
must be done before the BCIS is involved) is currently 3 to 4 months. BCIS
will expedite processing for an additional $1,000. This is called “premium
processing,” and it does not guarantee a favorable result, only a response within
15 days after BCIS accepts the petition for processing.
8.
It can take Baylor as much as two months to do all the work that must be done
to assemble the petition—and that is if everything goes well.
9.
Everything does not normally go well.
10.
The rules are complicated, confusing, and rapidly changing--even before 9/11.
A big rule to remember: H-1 status, like TN status, is employer specific. As a
result, someone working for another university in H-1 or TN status cannot
work for Baylor without having Baylor comply with the requirements for an
H1.
Family members accompanying an H1 Non-immigrant (H4 status)
11.
Family members who are dependents of the H1 nonimmigrant and who are out
of country can normally be granted H4 status based solely on the H1
nonimmigrant’s paperwork at the embassy or consulate that issues the H1 visa
to the H1 nonimmigrant.
12.
Family members who are dependents of the H1 nonimmigrant and who are
already in the US and need to extend or change status must file an I-539 and
pay the fee, which is currently $300. This paperwork should be completed by
the family, and the check and the form need to be provided to the Office of
General Counsel to submit with the H1 petition. (Forms and fees are at
<http://www.bcis.gov/graphics/formsfee/forms/index.html> Within that site, go
to Forms on Line.)
The rest of the Red Tape
13.
The H1 Petition is only a part of the overall process. It is not only complicated,
but unpredictable.
14.
First, BCIS controls the H1 process, and it is a determination of legal status
only—it may not be enough to ensure entry into the country!
15.
Second, entry into the country requires not only a legal status (H1) but a visa.
The visa is granted or denied by the Department of State, not BCIS, usually at
an embassy in the foreign national’s home country. The embassies may have
varying rules that require additional information before a visa is issued. In this
regard, there is no practical way of keeping current on the requirements of each
embassy. Consequently, the foreign national will need to be in contact with the
embassy that will be used to obtain a visa. The Office of General Counsel has
some limited resources about embassy or consulate addresses, telephone
numbers and processes. However, the foreign national must work directly
with the embassy or consulate involved. The U.S. Department of State
website is a useful resource in finding the address and phone number of
some embassies and consulates. In general, some embassies have changed
processes dramatically—what may have been a walk-in service, may now
require an appointment several weeks in advance, as well as review of the
file in Washington, D.C.
16.
Third, sometimes a person in the US wants to have a visa issued in some other
country, like Canada or Mexico. After 9/11, even that procedure has resulted in
some special rules. Again, from Baylor’s perspective, the foreign national
needs to be dealing directly with the embassy involved.
17.
Fourth, entry at legal Ports of Entry is controlled by BCIS, not the Department
of State. As a result, a person may have a legal status and a legal visa, but still
be denied entry by the BCIS when a border crossing is attempted. When entry
is permitted, the BCIS processes an I-94 that may contain an expiration date.
This I-94 controls the length of permissible stay, even if the visa or legal status
has been approved for a longer period of time.
18.
Fifth, once in the US and before working at Baylor, the foreign national must
report to the Personnel Services Office and complete an I-9 and provide lawful
documentation that proves the person’s identity and authorization to work at
Baylor. Of course, now that a US employer will be paying a foreign national,
yet another federal agency comes on scene—the Internal Revenue Service will
now be interested in the taxation and withholding of taxes.
19.
Sixth, even if the foreign national is here, authorized to work here at
Baylor, and is being paid—the compliance issues have not ended. Baylor
may not materially change the foreign national’s working conditions
without starting the H-1 process again to obtain approval to work under
the new working conditions!
20.
No guarantees.
Office of General Counsel/Fall 2007
Contact: Felicia Rodriguez, Office of General Counsel, ext. 3821